The U.S. Court of International Trade today ruled in Viet I-Mei Frozen Foods Co., Ltd. v. United States, affirming the U.S. Department of Commerce’s March 2014 determination in the reconducted fourth administrative review (2008-09) of the antidumping duty order on shrimp from Vietnam. Commerce in 2010 assigned Viet I-Mei’s predecessor-in-interest, Grobest & I-Mei Industrial (Vietnam) Co., Ltd. a 3.92% dumping margin based on the examination of other companies. Grobest successfully challenged Commerce’s refusal to individually examine its sales data on a voluntary basis, with the CIT in 2012 ordering the reconduct of the administrative review to encompass the information submitted by Grobest.
On remand, Commerce identified numerous inconsistencies and instances of incomplete responses in the material initially submitted by Grobest. The agency issued questionnaires seeking clarification regarding the company’s prior submissions. Yet Grobest thereafter refused to respond to these inquiries, refused to further participate in the review in any respect, and insisted that Commerce terminate the proceeding. This demand was opposed by the Ad Hoc Shrimp Trade Action Committee (“AHSTAC”), an association of domestic producers of warmwater shrimp represented by PKR, who argued that the CIT ruling and other applicable legal requirements necessitated the review. Commerce agreed with AHSTAC and, in response to the exporter’s non-cooperation, applied statutory “adverse facts available” to assign Grobest the 25.76% margin.
The CIT today rejects Viet I-Mei’s arguments that Commerce was compelled to terminate the re-conduct and re-instate the 3.92% rate originally assigned to Grobest. Judge Pogue ruled that “Commerce was not required by any statutory or regulatory authority to abort its court-ordered individual re-examination of Grobest simply because Grobest changed its mind regarding the benefit of such examination.” This precedent warns respondents seeking voluntary reviews in AD proceedings that they may not unilaterally cease such participation upon an indication of an unfavorable outcome.
In the wake of Grobest’s challenge, Commerce’s discretion to select or not select voluntary respondents has been significantly strengthened. Legislation enacted last month provides Commerce with express and substantial statutory discretion to decline reviews of those requesting voluntary respondent status.
Thus, by successfully challenging Commerce’s discretion as to whether to accept voluntary respondents in administrative reviews, Grobest set in motion both: (1) a reconducted administrative proceeding wherein the antidumping duty liquidation rate applied to its entries between February 1, 2008 and January 31, 2009 increased from 3.92% to 25.76%; and (2) legislative action to strengthen the agency’s discretion as to when to accept or not accept voluntary respondents in administrative reviews.